Town votes to support releasing water to Pine CreekSkips notifying the public of Special Meeting and binding voteby Dawn Ballou, Pinedale Online!October 21, 2006

Author’s Note: Since this story was written, more specific information has come available, so we want to correct a couple statements made in the article below. Pine Creek has, or has had, at least four water level gauging stations on Pine Creek at various locations, with historical flow data dating back to 1904. The record shows that Pine Creek never completely dries up, but does get low in the early spring (May) before spring thaw and late fall (October). See the links at the end of this article to Pine Creek historical flow data from the US Geological Service. July and August are not the lowest flow months for Pine Creek. Daily mean discharge for these stations (minimum daily flow) is at the bottom of the tables. We've also added some reader comments that have come in via e-mail since we posted this article.___________________________________________

In a hastily called Special Meeting Friday night, the Pinedale Town Council and audience members hotly debated whether or not to lend official Town Council support to a proposed House Bill that would allow the Town of Pinedale to release water stored in Fremont Lake for the purposes of instream flow to Pine Creek.

The Town Council chambers were packed with standing room only from people who only heard of the meeting via word of mouth. The Town called the two local newspapers and gave them less than 24-hour’s notice of Friday’s meeting, which didn’t allow time to have it printed in the paper’s weekly print cycle in order to notify the public. The Town did not notify local KPIN radio station of the meeting.

The proposed bill is called the “Instream flow-Fremont Lake pilot project” and is in committee sponsored by the Joint Agriculture, Public Lands and Water Resources Interim Committee. The Act is for a 5-year pilot project to allow the Town to release up to 4,800 acre-feet of water a year into Pine Creek, if the water is available and does not injure the water rights of any other lawful appropriator. The Act would require an agreement between the Town of Pinedale, Wyoming Game and Fish Commission, and the Water Development Commission for the period of the pilot project.

Eight-mile long Pine Creek flows from Fremont Lake into the New Fork River. During extremely dry summers, portions of the creek can dry up leaving only pockets of surface water habitat for fish. The stream supports populations of rainbow, brown and cutthroat trout, mountain whitefish, seasonal kokanee, speckled dace, mottled sculpins, mountain and white suckers, occasional lake trout and introduced red shiners.

The Interim Committee is meeting next Thursday and Friday in Sundance, Wyoming, and will consider the proposed legislation. Mayor Steve Smith said he planned to attend the meeting and the reason for the short notice of the Special Meeting was because he wanted to hand deliver the resolution in support, if it passed, to the committee next week.

It came out during the meeting that the Pinedale Town Council is not the entity that is behind pushing for the proposed bill or pilot project. “The Town didn’t instigate it,” Mayor Smith said. The bill is apparently being primarily supported by local and state members of Trout Unlimited, a fisheries advocacy group, which wants water in Pine Creek for fisheries and aesthetic values. “This is not my bill or the Town of Pinedale’s bill,” said Mayor Smith, “This was proposed by officials at the state legislature.”

Two council members, David Smith and Gary Heuck, were opposed to the resolution, while Councilpersons Chris House and Nylla Kunard and Mayor Steve Smith spoke in support.

Some audience members voiced strong concerns the resolution and bill would result in putting the Town at risk of losing its water rights in Fremont Lake if they allowed the water to be released. Audience members challenged the proponents on the Town Council that they were going against the wishes of an overwhelming majority of Pinedale residents who made it clear in an earlier vote that they did not want the Town to release water rights for instream flow.

Charlie Golden Jr said, “When all the citizens have already voted on this, why are you guys opening this back up again? The town has already told you guys we do not want this, so why do you keep dragging it up?”

Councilman Gary Heuck said, “If you put that water downstream, other people can claim it.” He later asked Mayor Smith, “Why wasn’t a public meeting called on this long before this because you knew about it?” Smith, a local fishing guide and member of Trout Unlimited, responded the reason was because he didn’t have the working draft of the bill until last week.

“Right now our water rights are 100% not in jeopardy,” Councilman David Smith said in opposition to the resolution and bill. “When it’s sitting in that lake, it’s safe,” he said. “If someone gets that from us, we are screwed as a town for water.”

Proponents in the audience disagreed that the resolution and bill would result in losing future water rights.

Chauncey Goodrich said, “I guess I just don’t see that there is any giving away or selling or anything of our water rights.”

Mayor Smith said he supported the Committee and the proposed bill. “There are a lot of residents in this town who would like to see water in the creek,” he said. “I think I am looking out after the Town’s interest by providing water in the creek.” He pointed out that the bill was still in Committee and has not gone to the state legislature yet, which meets in January. He said the Town would have plenty of opportunity to comment on the bill and the Town does not have to enter into the agreement. “This has nothing to do with messing with water rights.”

Councilman David Smith said, “When you're pouring a foundation, you’re not building a house, but it’s the first step.”

Pinedale resident and attorney John Mackey, who was strongly opposed to the resolution, said, “How can you say taking our water away is protecting our interest?” He added, “You are our custodians, our trustees. We trust you to look after us, not to give it away. You ought to be making this harder.” He added, “It’s one thing if the State wants to take it away from us, and they have a right to do it, if they can come up with a right, that’s something else. If the Town of Pinedale agrees to this, it takes the heat off of them.”

Councilman Chris House said, “It does not give away our water rights.”

John Godfrey, a member of Trout Unlimited, said the earlier vote was asking Pinedale residents their feelings on whether or not the Town should sell their water rights to the State of Wyoming, and this was different. He suggested the Town include another ballot in the water bill and let citizens of Pinedale have their say. Mayor Smith said they would do that.

Former Mayor Rose Skinner, who supports using Pinedale Town water for instream flow, said, “This is just to support this committee in its efforts. All you are here for is to approve or disapprove the resolution.”

Mayor Smith said, “This is not to support the bill necessarily, just to support their efforts to work on it. There will be plenty of time for public comment. This is very preliminary,” he said.

Councilwoman Kunard objected to the “personal attack” on the Mayor when Heuck and several audience members pointed out that Mayor Smith was a local fishing guide and member of Trout Unlimited and must have known about this legislation for weeks, if not months. They felt he had a vested interest in the outcome and therefore had a conflict of interest and should excuse himself from voting. Mayor Smith said he had consulted with lawyers who advised him he could vote on the issue.

Ultimately, Councilman House made a motion to approve the resolution, which was seconded by Kunard. David Smith and Heuck voted against the resolution and House and Kunard voted in favor, resulting in a tie. Mayor Smith broke the tie vote, lending his support to the resolution. The motion in favor of the resolution passed.

It was noted in conversation at the end of the meeting that next Monday's regular Town Council meeting has been cancelled. (Editor's Note: This meeting has been rescheduled for Monday, October 30th, at 5:30 pm in Pinedale. The meeting on October 23rd was cancelled for lack of a quorum. Two council members were scheduled to be in Cheyenne that day and another couldn't make the meeting on October 23.)

Below is the wording of the Resolution:____________________________RESOLUTION 2006-14

WHEREAS, the Town of Pinedale, hereinafter the Town, holds certain storage water rights in Fremont Lake Reservoir in Sublette County, Wyoming; and,

WHEREAS, one of such storage water rights is under Wyoming State Engineer Permit No. 4452 Res. With a priority date of 9/10/31 for four thousand eight hundred acre feet (4,800) of water, hereinafter the Water Right, and,

WHEREAS, the Town deems it to be in the public interest and the interest of the Town to utilize the Water Right to maintain a minimum instream flow in Pine Creek which traverses the Town; and

WHEREAS, the Town has considered several methods of establishing and maintaining such instream flow; and,

WHEREAS, the Town also desires to retain the Water Right in the event it is necessary for future Town use; and,

WHEREAS, there is a proposed Bill being discussed for introduction at the 2007 session of the Wyoming Legislature which would authorize and allow a pilot project to allow the Town to release up to four thousand eight hundred acre feet (4,800) of water if the same is available and property stored under the Water Right; and,

WHEREAS, said proposed Bill does not require the transfer of the Water Right to any third party by the Town and provides that no permanent instream flow water right shall be conferred upon the release made there under; and,

WHEREAS, the pilot project established by the proposed Bill will be repealed defective September 30, 2011; and,

WHEREAS, the draft of said bill identifies the resulting statute as W.S. 41-3-1015; and,

WHEREAS, it is deemed to be in the best interest of the Town and its citizens to support the adoption of the aforesaid proposed Bill. NOW, THEREFORE BE IT RESOLVED, that the Town Council of the Town of Pinedale hereby expresses its support for the efforts of the Interim Committee in drafting proposed W.S. 41-3-1025 providing for an Instream Flow – Fremont Lake Pilot Project.”

PASSED, APPROVED AND ADOPTED THIS 20th DAY OF OCTOBER, 2006.____________________________

FEEDBACK COMMENTS:"The article on pine creek stating that it goes dry is not true. I have never seen it down to just small pools as stated in the article."____________________"Just saw this and do not know what the State of Wyoming has for law. But any meeting not properly noticed, and 24 hours or less is not proper notice, here means that any vote or proposed action(s) are not legal or binding. By voting to allow this the City of Pinedale has set a legal precedent that can then be used in a court to prohibit the withdrawal of the water. In your story there is no notice that the council has reserved its rights to withdraw the water at future time, nor did I read that the council would be putting this action to a vote of its citizens. You might want to watch the next move by the supporters of this action, to create a fish ladder the will have to be permanently allocated water regardless of supply and drought conditions. How do I know.....It happened here (in California)."____________________"Indeed it has low flow at times, but I've never seen it truly stagnant...But one does not want to just release a uniform quantity of water over a period of time. Suffice it here, the short story is to take the agreed quantity of water and release it in a manner that mimics nature. This is likely to include a 'flushing flow' that is capable of transporting accumulating sediment."